Is ‘warehousing’ in Care Homes actually unlawful?

I’ve been surprised at the furore going on in the HSJ and Guardian, this last week, about the most juicy and important test case issue of our time: the question of the rights and wrongs – in legal terms – of a public body’s offering someone a care home place because it is cheaper than keeping them at home. And then offering them the lower sum of money of the two settings, if the person is intransigent enough to say no, because they’d prefer to stay at home and be cared for there….

I say I’m surprised because it’s been going on for at least 15 years, in local authority land, for people who used to be referred to as ‘the elderly’ – but never scrutinised in the Administrative Court, on a judicial review that’s been allowed to go to judgement. No precedent has ever been set, therefore.

I have been punting around the possibility of my airing a reasoned and legally well-informed answer amongst all the interested journalistic parties – for one thing only, in return, if they can’t PAY for what is a proper analysis: publicity for the charity that I am about to launch – a charity that will provide free legal advice to a specific group of people, and get funds raised for them through crowd-funding so that they don’t need legal aid, and then even front their cases with them from time to time, so that they can’t be bought off at the last minute.

I haven’t had any offers yet, mind you! Is that because proper legal analysis is considered boring, or puts an end to the column inches one can generate by emoting? Goodness knows.

So I am thinking of doing a webinar about it. Not for a customer with an agenda, but for the sheer faith I have, that people working in the sector will actually be interested.

I will say this about the issue though: the legality or otherwise of ‘warehousing’, as it’s being somewhat emotively called – would be a big ask for the charity to take up, as its first ‘public’ cause for actual litigation, because it’s a genuinely moot point, in legal terms. It depends on oh so very many of the specific circumstances of the person on the receiving end of such largesse from a council or a CCG – and it could go either way, depending on the specific case that is chosen for a challenge.

The funny thing is that it’s been going on in socialcare for at least 15 years. No council has ever allowed itself to be judicially reviewed, for doing it, and that suggests to me that they’ve had legal advice that has convinced them that they were probably on a sticky wicket.

But that was under the pre-Care Act law, and times is tough, now: LAs AND CCGs are getting closer to the edge, and someone is bound to think it’s worth the fight, and the risk of setting a precedent, sooner or later.

Being very comfortable with public law principles, I think that I know what the answer is, and why. And I can identify the case law to back it up.

So here is an offer, and only slightly tongue in cheek, given the way England seems to work these days:

Given that even legally literate people need to eat, I’m wondering whether anyone would anyone like to BID for the story, in terms of money or publicity for the charity? As a sort of friendly start-up donation? 🙂

It would be a completely neutrally written piece, because the answer would only be a set of thoughts about public law, defensible decision-making and legal literacy, not a real case. It might save thousands of pounds of court fees, and who knows what it would do for the people affected by such policies, and the reputations of the managers espousing them?

I am hoping that this RANT by me, has got the sector interested in what needs to be done about the sector-wide lack of legal literacy fogging up strategic thinking! And that a webinar has got to be a better idea for getting the word out there….

Please Tweet to me @BelindaSchwehr or message me on belinda@careandhealthlaw.com as to whether it should be free or not – maybe free if you just want to listen, but chargeable if you want the recording? Or should it just go up on YouTube, and we’ll see whether any LA or CCG changes its plans? I gather one has done so already, since Fleur Perry’s FOI question revealed the facts about the extent of the practice. And then I’d be happy to send you stuff about the charity too.

The charity is going to be called CASCAIDr – standing for the Centre for Adult Social Care – Advice, Information and Dispute Resolution – and I am looking forward to prising those legal floodgates open soon! #CASCAIDr, naturally.

CASCAIDr will write letters before action in proper Pre Action Protocol Form, to councils and CCGs thought to be breaking the law, in many more ways than just in terms of cost-capping. It will support people to crowdfund on CrowdJustice if these letters make no difference. It will not accept service contracts from any public body, because we all know what can happen to a body’s independence and assertiveness, when service provision becomes the means of remaining viable. It will be a hub for preserving what is good for citizens in the legal framework, and reinvigorate some sort of respect for the rule of law, perhaps, which is something that we ALL need, in extremely difficult times.

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues.
She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point!
She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together!
She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!